The Trinamool Congress has won the election in Bengal, but its leader Mamta Banerjee has lost the election from Nandigram assembly seat. She will soon (today) be sworn in as the Chief Minister of the state. But the question is whether the person who lost the election can take the oath of constitutional post of Chief Minister? Are there any Constitutional Constraints? In response to this, experts say that there is no constitutional bottleneck in becoming Chief Minister if the election is lost.
Some questions that arise in your mind
– A person who did not contest elections, can he remain a minister or chief minister for six months?
-The person who lost in the election, can that person become the Chief Minister for six months?
Can a few days after the end of six months become Chief Minister again for six months?
Answer in Article 164 of the Constitution
The answer to these questions is in Article 164 of the Constitution. This article says that the governor will appoint the chief minister and on the recommendation of the chief minister, the governor will appoint other ministers. They will continue as Chief Ministers and ministers till the Governor’s consent. According to Article 164.4, a minister who has not been a member of the Legislative Assembly for six months will be removed after the expiry of six months.
The issue came up in 1971
The issue came up before the country’s highest court in 1971, when a petition was filed in the Supreme Court against the appointment of Tribhuvan Narayan Singh as the Chief Minister of Uttar Pradesh. After this, the cases of making Sitaram Kesri as Union Minister and HD Deve Gowda as Prime Minister also came to the Supreme Court. All these were not elected members of any House at the time of their selection.
The Allahabad High Court dismissed the petition
Singh was not a member of any House in the case of UP. The petitioner said that a person who is not a member of a legislative house under Article 164.1 cannot be made a minister or a chief minister. His petition was rejected by the Allahabad High Court and said that the Chief Minister can remain in the post for six months like other ministers without selection. The court said that the minister’s word written in Article 164.1 also includes the Chief Minister.
Cited the Constituent Assembly debate
Justifying the High Court’s decision, the Supreme Court cited the Constituent Assembly’s debate and said that the Constituent Assembly also did not come to say that a person who is not an MLA or MP cannot be made a Minister or Chief Minister or Prime Minister. The court said that Article 164.4 will be applicable in every case i.e. in the event of not being elected a member of a House after six months, that person will be deemed to be automatically removed from his post.
Can a non-elected person come to the post twice after a certain period of time?
The Supreme Court answered this question in a Punjab case. The court said that without being elected a member of a House, a person cannot be given a ministerial or other post after repeated six months. This would be against the soul of Article 146.4 of the Constitution and would be playing with the Constitution. The Court stated that Article 164.4 is like an exception to the general rules, which have been made for a short period. This provision clearly dictates that if a person fails to get elected within a grace period of six months, then he cannot continue in the post. This provision will have to be defeated after a period of six months has passed and it is necessary to reappoint it after a gap of a few days. Saying this, the court termed the appointment of the minister appointed in Punjab as illegal.
Just a question of morality
The court also made it clear in these cases that there is no difference between the person who was defeated in the election or who did not contest the election. Senior advocate and constitutionalist Dr. HP Sharma says that the question is only of morality whether a person who is defeated in an election can become the Chief Minister or not. However, courts do not pass any judgment on morality.